Some things Supreme Court nominee Neil Gorsuch has told the Senate Judiciary Committee that he is not:
“God.”
“An algorithm.”
“A politician.”
And some things he has confirmed to the committee he is:
“A fair judge.”
“A witness.”
“My own man.”
As Gorsuch wends his way through a third day of confirmation hearing on Capitol Hill, he also showed himself to be very, very good at avoiding direct answers.
Sen. Dick Durbin, the Illinois Democrat, took a more circular route and asked Wednesday about a book Gorsuch wrote on assisted suicide. At issue: When life begins.
“As the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the 14th Amendment and the book explains that,” Gorsuch said.
“Do you accept that?” Durbin asked.
“That’s the law of the land, senator,” Gorsuch said. “Yes.”
It’s as close as the judge would get to offering any meaningful insight into his views on what has for decades been one of the nation’s most hotly contested political and legal debates.
Through 11 hours of questioning a day earlier, Gorsuch had fastidiously avoided sharing much more than basic thoughts on the law, or his soon-to-be life-tenured role in applying it. He has been mostly friendly, yes, sometimes charming and, during his chatty exchange with Sen. Ted Cruz, even reached for folksy.
“A mutton busting, as you know, comes sort of like bronco busting for adults,” he explained during a brief and unusually broad monologue on the annual Denver-based National Western Stock Show. “You take a poor little kid, you find a sheep and you attach the one to the other and see how long they can hold on … I tell my kids hold on monkey style, you know, really get in there, right? Get around it.”
But even by the standard of Supreme Court nomination hearings, where it is common practice for nominees to steer clear of remarking on controversial or pending cases, Gorsuch has been unusually opaque.
Asked by Democrats about a series of hot-button rulings, from Roe v. Wade to Bush v. Gore, the decision that ended the 2000 presidential election stalemate, the nominee demurred over and over again.
“If I were to start telling you which are my favorite precedents or which are my least favorite precedents or if I view a precedent in that fashion, I would be tipping my hand and suggesting to litigants that I’ve already made up my mind about their cases,” he said.
Yet when the subject of gay marriage came up, as it did on a number of occasions, Gorsuch comfortably described it as “settled law” — a term he did not use publicly while discussing Roe, a much older and more often re-affirmed ruling.
Gorsuch promised fairness, though he never quite defined the term. And when pressed by Sen. Dianne Feinstein, a California Democrat, to “elaborate” on the value of precedent — as she attempted in vain to gauge Gorsuch’s application of it in regard to Roe — he said this:
“Part of the value of precedent — it has lots of value, it has value in and of itself, because it’s our history and our history has value intrinsically. But it also has an instrumental value in this sense: It adds to the determinacy of law. We have lots of tools that allow us to narrow the realm of admissible dispute between parties so that people can anticipate and organize their affairs. It’s part of the reason the rule of law in this country works so well. We have statutes, we have rules, we have a fact finding process and a judicial system that is the envy of the world.”
He went on, giving away nothing.
Gorsuch’s maneuvering was mostly met by Democrats with sighs and shrugs. Feinstein and Sen. Patrick Leahy were either unwilling or unable to pin him down on much at all. Sen. Amy Klobuchar’s frustration was evident. Her fellow Minnesotan, Sen. Al Franken, was especially pointed in his displeasure.
The former Saturday Night Live star questioned Gorsuch about the case of Alphonse Maddin, a TransAm driver fired by the company for leaving the cab of a trailer with frozen brakes, in defiance of company orders, after subzero temperatures sent him into a near-hypothermic state.
When asked earlier why he sided against the so-called “frozen trucker,” Gorsuch explained that his dissent was crafted in accordance with the letter of the law, its plain meaning, and not his personal feelings.
Franken, one of the few inquisitors who pressed his points, said following Gorsuch’s logic would have led to an “absurd” result — specifically, the death of the driver or others on the road with him — and eventually quizzed the judge on what he would have done if presented the same options as Maddin.
“I totally empathize and understand,” Gorsuch began, deflecting, before Franken interjected: “I’m asking you a question, please answer a question.”
“Senator, I don’t know,” Gorsuch said. “I wasn’t in the man’s shoes.”
Nor were Gorsuch’s questioners anywhere near getting in his head. By one measure, it is a mark of his undeniable intellectual and rhetorical talents. By another, it underlined a largely futile exercise that seems destined to conclude with more questions than it began.
